Opinion
01 Civ. 4209 (RWS)
July 31, 2002
SHAFRAN MOSLEY, Attorney for Plaintiffs, New York, NY, By: KEVIN L. MOSLEY, ESQ.
WILSON, ELSER, MOSKOWITZ, EDELMAN DICKER, Attorney for Defendants, New York, NY, By: JOHN DOODY, ESQ.
OPINION
Defendants Camp Wildwood ("Wildwood"), Mark Meyer, Peter Meyer, and the Meyers Partnership (the "Partnership") (collectively the "Defendants") have moved to transfer this case to the District of Maine pursuant to the provisions of 28 U.S.C. § 1404 (a).
For the following reasons, that motion is denied.
Parties
Plaintiffs David Lesser and Diane Lesser are the parents and guardians of plaintiff Jory Lesser, a minor (collectively, the "Lessers"). The Lessers are residents of California.
Defendant Wildwood is a corporation located and incorporated in Bridgton, Maine. It owns, manages, and maintains property in Bridgton, Maine. At oral argument, defense counsel stated that Camp Wildwood is one of the largest tax payers in Bridgton, Maine. Wildwood does business in New York and has an office at 838 West End Avenue, New York, New York 10025.
Defendant Peter Meyer is an individual domiciled and residing at 838 West End Avenue, New York, New York 10025. He is also a resident of the State of Maine.
Defendant Mark Meyer is an individual domiciled and residing in Rye Brook, New York. He is also a resident of the State of Maine.
Defendant Partnership is a general partnership located and established in Bridgton, Maine. It does business in the State of New York and has an office at 838 West End Avenue, New York, New York.
Prior Proceedings
The Lessers commenced this action on April 10, 2001 in New York state court. The basis of the designated venue was the defendants' residence in the County of New York and the location of the defendants' place of business in the County of New York.
On May 16, 2001, the action was removed to the United States District Court, Southern District of New York on the basis of diversity jurisdiction.
The instant motion was filed on March 7, 2002. Oral argument was heard on June 12, 2002, and the motion was considered fully submitted at that time.
Facts
In November 1999, Diane and David Lesser contacted Camp Wildwood's New York office and spoke to Mark Meyer, requesting information about the camp. From their New York office, the Defendants mailed sales brochures and other materials to the Lessers. From their New York office, the Defendants subsequently mailed a contract for enrollment in Camp Wildwood to the Lessers. The Lessers signed the contract in California and mailed it and a tuition check to the Defendants' New York office.
In June 2000, Diane and David Lesser delivered Jory Lesser, then twelve years-old, to the Defendants' custody and care in Mamaroneck, New York. Defendants then transported Jory Lesser and a number of other campers by bus to the campground in Maine.
On July 4, 2000, Jory Lesser was injured at the camp when a pine tree fell on him during a thunderstorm. There were no eyewitnesses to the event as Jory Lesser was alone when the tree fell on him.
Following the accident, Jory Lesser was transported to a local hospital and then to Maine Medical Center ("MMC") in Portland, Maine, where he underwent surgery and stayed in a special care unit for approximately one month, until August 2, 2000. At MMC, Jory Lesser was treated by various physicians and medical professionals. After his discharge from MMC, Jory Lesser returned to California where he continued his treatment and rehabilitation.
The Lessers claim that Jory Lesser has suffered "serious, severe, permanent and profound personal injuries," including multiple fractures, muscular and tendon damage necessitating multiple surgeries, protracted hospitalization, severe and permanent limitation of motion, pain and suffering, emotional distress and psychological injury.
Witnesses Residing in Maine
The Defendants state that they intend to call as witnesses a number of persons who reside in Maine.
David G. Fitz, M.D., of the Maine Medical Center, is a doctor of record on the case. He practices medicine in the State of Maine and "will likely be inconvenienced if he is called as a witness in the State of New York." Defs.' Mem. at 3. The Defendants also state that other examining physicians who treated Jory Lesser from July 4 to August 2, 2000, work in Maine and they may be called. The Defendants do not specify who they are or whether they would be inconvenienced.
Glenn Zaidman, head of maintenance at Wildwood, resides in Bridgton, Maine, along with all the members of the maintenance crew employed by Wildwood in the summer of 2000. Zaidman monitored weather conditions on July 4, 2000.
Paul Prouty ("Prouty"), the arborist hired by the Defendants to assess the condition of the trees on the campground at least twice a year, resides in Fryeburg, Maine. Because the Lessers allege that the pine tree that struck Jory Lesser was in a rotting, deteriorating condition, the Defendants consider Prouty an important witness.
Dan and Marci Isdaner (the "Isdaners") own a girls' camp, Camp Mataponi, in Naples, Maine. They and their camp were visiting at Wildwood on July 4, 2000. The Isdaners are familiar with the local weather conditions in Maine and storm warning precautions taken with camps by local authorities. The Isdaners reside in both Cherry Hill, New Jersey and Naples, Maine.
Bruce Chalmers, of Chalmers Insurance Agency ("Chalmers"), performed an investigation of the premises of Camp Wildwood following Jory Lesser's accident. Chalmers may testify as to the condition of the campgrounds after the storm. Chalmers Insurance Agency and Chalmers's records are located in Bridgton, Maine.
Discussion
Section 1404(a) provides for a change in venue to another judicial district if (1) the action could have been commenced in the transferee district initially; and (2) the moving party has "demonstrate[d] through clear and convincing evidence that the interests of justice require transfer to a venue other than the one chosen by plaintiff." Hernandez v. Blackbird Holdings, Inc., 2002 WL 265130, at *1 (S.D.N.Y. Feb. 25, 2002) (citing Hall v. South Orange, 89 F. Supp.2d 488 (S.D.N.Y. 2000)). Defendants, as the moving parties, have the burden of establishing that the action should have been transferred. Factors, Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 218 (2d Cir. 1978), rev'd on other grounds, 652 F.2d 278 (2d Cir. 1981).
I. The Action Could Have Been Commenced in Maine
The Lessers do not contest that the action could have been brought in the District of Maine because it is the Defendants' residence and a substantial part of events giving rise to the claim occurred in Maine, including the injury complained of. 28 U.S.C.A. § 1391(a)(2).
II. The Interests of Justice Do Not Mandate a Transfer
The determination of whether the interests of justice are served involves a number of factors, including "(1) the place where the operative facts occurred; (2) the convenience to the parties; (3) the convenience of the witnesses; (4) the relative ease of access to sources of proof; (5) the availability of process to compel attendance of witnesses; (6) the plaintiff's choice of forum; (7) the forum's familiarity with the governing law; and (8) trial efficiency and the interests of justice." Hernandez, 2002 WL 265130, at *1; see also Berg v. First American Bankshares, Inc., 576 F. Supp. 1239, 1241 (2d Cir. 1983) (listing factors).
Some of these factors weigh heavier in the balance than others. For instance, plaintiff's choice of forum "should rarely be disturbed" unless "the balance is strongly in favor of the defendant." Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947); see also Hernandez, 2002 WL 265130, at *1 (guoting Manufacturers Hanover Trust Co. v. Palmer Co., 798 F. Supp. 161 (S.D.N.Y. 1992)). In fact, "a court should begin with the assumption that a plaintiff's choice of forum will stand unless the defendant can demonstrate that reasons exist to afford it less deference." DiRienzo v. Philip Serv. Corp., 2000 WL 33725106 (April 1, 2002) (citing Iragorri v. United Technologies Corp., 274 F.3d 65, 70-71 (2d Cir. 2001)).
The Defendants argue that the Lessers' choice of New York as a forum should be given less weight because it is not their residence nor the place where the operative facts occurred. Dwyer v. General Motors Corp., 853 F. Supp. 690, 694 (S.D.N.Y. 1994). However, New York is not completely unrelated to the instant action. It is the home of two defendants, and Camp Wildwood has an office here. The Lessers contacted the Defendants in New York, and mailed the eventual contract to New York. Further, they transferred the custody of Jory Lesser to the Defendants in New York. While it is true that the actual accident did not occur in New York, there are a number of ties to the state. Given these facts and that the Lessers likely would not have obtained personal jurisdiction over the Defendants in their home state of California, the presumption should remain.
The presumption is in place, and the Defendants fail to overcome it.
A. Convenience of Non-Party and Party Witnesses
Convenience of non-party and party witnesses is one of the most important factors.
1. Non-Party Witnesses
Defendants relying on this factor must "support the application with an affidavit containing detailed factual statements relevant to the factors set forth above, including the potential principal witnesses expected to be called and a general statement of the substance of their testimony." Hernandez v. Graebel Van Lines, 761 F. Supp. 983, 987 (E.D.N.Y. 1991) (citing Factors, 579 F.2d 215); see also Vassallo v. Niedermeyer, 495 F. Supp. 757, 760 (S.D.N.Y. 1980) ("A party seeking a transfer on account of the convenience of witnesses . . . must clearly specify the key witnesses to be called . . . .").
The Defendants state that a number of non-party witnesses reside in Maine and "likely" will be inconvenienced by the New York forum. For none of them, however, do the Defendants state that (1) the witnesses actually have said that they will not or cannot attend a trial in New York, and (2) deposition testimony would be inadequate. Where deposition testimony is an available alternative to live testimony, the convenience of the non-party witness does not favor a transfer. American Alliance, 1999 U.S. Dist. LEXIS 713 at *23 ("[B]ecause [Defendants] ha[ve] not shown why deposition testimony would be inadequate in this case, this factor carries less weight."); Orb Factory Ltd. v. Design Science Toys, 6 F. Supp.2d 203, 208 (S.D.N.Y. 1998). This alone is sufficient to find this factor does not favor a transfer for all of the witnesses.
In addition, the Lessers dispute the Defendants' contentions about several of the witnesses' on other grounds.
First, the Defendants state that they may call as witnesses medical personnel who treated Jory Lesser from July 4, 2000 to August 2, 2000. The personnel reside in Maine and likely would be inconvenienced. The only specific witness they have referenced is Dr. Fitz. The need for Fitz's testimony is unclear in light of the fact that the Defendants have already made an application to the Court to have Jory Lesser examined by a New York physician, and that request was granted. In addition, Fitz's convenience is at most a neutral factor — even if he had stated that he could not attend a trial in New York and his deposition testimony was inadequate — because the Lessers intend to call California-based doctors and therapists who have most recently treated Jory Lesser and who they claim would be inconvenienced by the transfer due to the increased time involved when traveling from California to Maine.
Defendants also claim that Chalmers, who has been the Defendants' insurance agent for more than forty years, would be inconvenienced by the New York venue. At least one other court has determined that a defendants' insurance agent, although posed as a non-party witness, was actually the defendants' agent over whom the defendants, as principals, had sufficient power to create a presumption that the agent would appear willingly at trial in a foreign forum. American Alliance Ins. v. Sunbeam Corp., 1999 U.S. Dist. LEXIS 713 at *21-22, No. 98 Civ. 4703 (S.D.N.Y. Jan. 22, 1999). This presumption is appropriate here. Chalmers is an agent of One Beacon, which will pay the Lessers' total recovery if there is one. Further, defense counsel served as Chalmers' counsel at his deposition and served a Notice of Appearance as counsel.
Two witnesses, the Isdaners, are within the jurisdiction of this Court and their live testimony can be compelled at trial. The Isdaners maintain their primary residence in New Jersey, within 100 miles of the Southern District of New York courthouse. Both were subpoenaed to be deposed in New York. The Lessers also note that the Isdaners have a young baby at home in New Jersey and, unless the trial occurs during the summer months when they are at their camp in Maine, travel would be inconvenient.
Defendants in their reply papers operate under the assumption that a trial will be held during the summer when they and the Isdaners are in Maine. A trial date has not been set, however, and such argument fails as a result. Further, the Lessers state that they have never demanded such a schedule (to avoid Jory Lesser's missing school).
Another witness, Zaidman, is the Defendants' employee and thus is presumed to be amenable to appearing at trial in a foreign forum on his employer's behalf. Aerotel, Ltd. v. Sprint Corp., 100 F. Supp.2d 189, 197 (S.D.N.Y. 2000) (denying motion to transfer); Rail Europe, Inc. v. Rail Pass Express, Inc., 1994 U.S. Dist. LEXIS 9258, No. 94 Civ. 1506, at *8 (S.D.N.Y. July 8, 1994). The Court has already ruled that the Defendants must produce Zaidman for deposition in New York if the case remains venued here.
In opposition, the Lessers also note that several of their potential witnesses would be inconvenienced by a move to Maine. First, William Kahn, the father of a fellow camper, lives in New York. Camp materials show that a number of other parents do as well. In addition, sixteen camp counselors from the 2000 camp live in the New York area; only one lives in Maine. The Lessers propose to call one or two as witnesses and claim that New York is more convenient.
In sum, this factor at the very least does not overcome the presumption that the plaintiffs' choice of forum should stand.
2. Convenience of the Party Witnesses
The Lessers claim that they will be inconvenienced by a transfer to Maine. First, they claim that traveling from California to New York is more convenient than traveling from California to Maine. Non-stop flights are available to New York, whereas travel to Maine involves at least one stopover. Because of Jory Lesser's limited mobility as a result of the accident, such stopovers present an added difficulty. Second, the Lessers have a family member in the New York area with whom they can stay during the trial.
In their reply memorandum, the Defendants base their argument that New York would be an inconvenient forum for them on the notion that a trial in this case will be held during the summer months, when Camp Wildwood is in session. However, these arguments are unsupported as a final trial date has not been set. Further, because the Meyers are residents of New York and live here when not in Maine, they will not be inconvenienced — and may even find New York more convenient — if the trial takes place in any but the summer months.
This factor therefore supports retaining venue in the Southern District of New York.
B. Place Where the Operative Facts Occurred
The accident and Jory Lesser's initial treatment took place in Maine. This factor leans in favor of, but cannot by itself in this case militate, the transfer to Maine.
C. Relative Ease of Access to Proof
Defendants' primary argument is that the physical evidence, i.e. the scene where the tree fall, is located in Maine. This argument would make sense only if the jury would need to visit the scene or if physical evidence would be transported to the courthouse. As the pine tree that fell on Jory Lesser and its stump have been destroyed, only the latter appears to be at issue.
The Defendants' conclusory argument as to why they would seek to have the jury visit the scene — because "the source of liability is a key issue in this case" (Defs.' Mem. at 13) — is not persuasive. E.g., Vassallo, 495 F. Supp. at 760 ("Defendants have presented nothing to the Court that could support the highly unusual practice of having a jury view the [car accident] scene . . . ."); Schwartz v. Marriott Hotel, 186 F. Supp.2d 245, 250 (E.D.N.Y. 2002) (movant's argument that "Court and jurors will be visiting the scene of the accident" was neutral factor given the "straight-forward nature of the allegations" and existence of photographs and diagrams). As noted above, nothing remains of the fallen pine tree at the site, and there is some question as to whether the jury could identify its former exact location. In addition, the Defendants primarily seem to want to show the jury that the copse of trees in which the pine tree stood was a small one. They can do that sufficiently with photographs or diagrams. Further, the copse of trees might be entirely covered in snow during the trial, as the area enjoys frequent snowfalls as late as April. In short, the Defendants offer no proof that the Camp will be available in the conditions that existed on the evening of the accident nor of the necessity of such a visit.
The Defendants' secondary argument is that Wildwood records and Jory Lesser's medical records from July 4 to August 2, 2000 are located in Maine. This argument is also unpersuasive. E.g., Hernandez, 2002 WL 265130, at *1 ("While some of the documents relevant to this action may be located [outside this District], this factor is neutral [i]n today's era of photocopying, fax machines and Federal Express.") (guoting Coker v. Bank of America, 984 F. Supp. 757, 766 (S.D.N.Y. 1997)). This case is not document-heavy. For instance, in November 2001, the Defendants produced less than a redweld of documents to the Lessers in response to their demands. Further, the Meyers testified at their depositions that they store many of the Camp's records, such as contracts, sales materials, and employment applications, in New York City for at least nine months of the year.
This factor does not support transfer.
D. Availability of Process to Compel Unwilling Witnesses
The Defendants state that they would be unable to compel Prouty, Bell and other unnamed witnesses including emergency services personnel and Jory Lesser's treating physicians in Maine. As noted above, however, they have failed to allege that these witnesses would be unwilling to travel to New York or that deposition testimony would be inadequate. This factor does not support transfer.
E. Forum's Familiarity with the Governing Law
The parties agree that the law of the state of Maine would likely apply under New York's choice of law rules. The parties also agree that "that the law of another jurisdiction governs the outcome of the case is a factor accorded little weight on a motion to transfer . . . especially . . . where no complex questions of foreign law are involved." Dwyer, 853 F. Supp. at 694. The Defendants do not point to any differences between New York and Maine law, nor do they suggest that the case involves any novel or complex issues of Maine law. As a result, this factor is insufficient to overcome the presumption in favor of the Lessers' choice of forum.
F. Trial Efficiency and the Interests of Justice
The Defendants argue that Maine has a stronger interest in applying its law to the case and in having its residents sit as jurors because Camp Wildwood is located in Maine, along with many other summer camps who could be affected by the determination in this case, and because the accident occurred in Maine.
The Lessers are persuasive in pointing out, however, that New York also shares an interest in the case. In the year 2000, none of the campers and only one counselor were from Maine. By contrast, the Defendants admit that "the majority of campers at Wildwood are from well-to-do New York families . . . ." The Defendants advertise their camp nationally by means of their Internet web site, www.campwildwood.com, and by virtue of their membership in the American Camping Association ("ACA")'s New York chapter. Although they could advertise through the ACA's New England regional office, which includes Maine camps, they instead advertise through the New York office, presumably to attract a New York clientele. The Defendants provide transportation from New York to Maine. As a result, New York has a significant interest in the outcome of this case. The factor therefore is at most neutral.
In addition, this case was initiated in April 2001, yet the Defendants waited until March 2002 to seek this transfer. During the almost one-year delay, discovery has gotten well underway and the Court has held a pretrial conference and familiarized itself with the issues of the case. Moreover, the Defendants have not presented any late-breaking issues that would explain why they waited almost a year to seek a transfer to Maine.
The Defendants have failed to present sufficient grounds for overturning the Lessers' choice of venue. Therefore, their motion to transfer is denied.
Conclusion
For the foregoing reasons, the Defendants' motion to transfer venue is denied.
It is so ordered.